Facts of the case

In 2003, Congress enacted the United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act ("the Act"). Through the Act, Congress apportioned billions of dollars towards the funding of non-governmental organizations ("NGOs") involved in the fight against HIV/AIDS. NGOs qualify to receive this funding only if they satisfy certain conditions. One of these conditions requires that all federally funded NGOs implement a policy explicitly opposing prostitution.

The Alliance for Open Society International, Inc., Pathfinder International, Global Health Council, and InterAction are NGOs that receive funding under the Act. The NGOs brought suit against the Agency for International Development and the other agencies responsible for enforcing the Act, challenging the constitutionality of the Act's funding provisions. The NGOs argued that the funding provisions violate the First Amendment by restricting the organizations' speech and forcing them to promote the government's viewpoint on prostitution. The district court agreed with the NGOs and held that the provisions were too broad of a restriction on free speech. The agencies appealed and the United States Court of Appeals for the Second Circuit affirmed.

Question

Does a requirement that non-governmental organizations institute an explicit anti-prostitution policy in order to receive federal funding violate the First Amendment?

Media for Agency for International Development v. Alliance for Open Society International

Audio Transcription for Opinion Announcement - June 20, 2013 in Agency for International Development v. Alliance for Open Society International

John G. Roberts, Jr.:

I have our opinion this morning in case 12-10, United States Agency for International Development versus the Alliance for Open Society International.

In 2003, Congress passed a United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act.

That Act set forth a comprehensive strategy to among other things combat the spread of HIV/AIDS around the world. As part of that strategy, Congress appropriated billions of dollars to fund efforts by nongovernmental organizations to assist in the fight.

The money, however, comes with two related conditions First, no funds made available by the Act may be used to promote or advocate the legalization or practice of prostitution or sex trafficking.

And second, no funds may be used by an organization that does not have a policy explicitly opposing prostitution and sex trafficking.

This case concerns the second condition referred to as the Policy Requirement.

The respondents are grant recipients under the Act who object to that requirement.

They work with prostitutes to try to stop the spread of AIDS and think that it will be hard to do that effectively if the prostitutes are afraid the organizations want to take away their livelihood.

The organizations claim that the Policy Requirement violates their First Amendment rights by compelling them to adopt a particular view on a matter of public concern.

Now, if the requirement were a direct regulation, it would of course violate the First Amendment.

The Government cannot tell you what to believe.

What makes this case hard is that the requirement is imposed only as a condition on the receipt of federal funds.

As the Government puts it, “If you do not like the requirement that you have a policy opposing prostitution, don't take the money.”

Under our cases, that answer is usually sufficient when it comes to funding conditions in general.

In some cases, however, we have said that a funding condition can give rise to a First Amendment violation that it's not enough to say, “Just don't take the money.”

The line that emerges from our cases and it is not a clear one is between conditions that regulate how the federal funds are to be used in the program and conditions that seek to leverage the funding to regulate speech outside the program.

So, where does the Policy Requirement fall?

It does not just tell an organization how it can use the funds.

If you remember, the first condition does that.

It says, “You can't use the funds to promote legalization or the practice of prostitution.”

The Policy Requirement does more.

It tells an organization what it must believe.

It must have a policy explicitly opposing prostitution.

That compelled belief goes with the organization wherever it goes.

The organization cannot say it has one belief when it comes to the federal program and the different belief when it is working on its own time and dime.

It is the very nature and purpose of the Policy Requirement that it apply outside the confines of the particular federal program.

The Government, therefore, cannot insist that organizations adopt the anti-prostitution policy as the price of obtaining Leadership Act Funds.

The Government says, “Organizations that receive funds under the Act should not be allowed to undermine the Government's policy opposing prostitution.”

But the Policy Requirement does not just say, “Don't do anything to undermine the government's policy.”